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Summer is here for all of us in the Northern Hemisphere. And for those of us in the U.S., we unofficially consider summer anytime between Memoria Day (celebrated May 28th this year) and Labor Day (September 3rd this year). During this period, there’s more people scheduling week-long time off in addition to just a day here or there to create a few more long weekends. If you’re a regular traveler, you’ll definitely see more families traveling in the airports especially during June, July and August.

Whatever your summer plans are (family vacation, a few extra Fridays off, catching up on reading, sports, etc.), make sure to have a safe one.

Employees in Oklahoma with permits must be allowed to store guns in their vehicles at work, under recent legislation signed into law on May 15. However, the law does not require businesses to allow guns on their premises, whether licensed or not.

The new Oklahoma law, which becomes effective on November 1, 2012, sets out the requirements for obtaining a license for an open carry permit in Oklahoma and generally allows residents of the state who qualify to carry a gun openly in any situation in which they could carry a concealed weapon under the current law. The law likewise prohibits the carrying of weapons in governmental buildings, at corrections facilities, on school or college campuses, in bars, and at sports arenas during
sporting events. Exceptions are made for gun safety training and sporting events involving firearms. However, guns may be carried in places such as restaurants that sell alcohol, if alcohol sale is not the primary business. Persons seeking a license for open carry of weapons must take a firearms safety and training class, and must undergo a background check.

Currently, there are 25 states that now permit open carry of weapons with 14, including Oklahoma, requiring a license. 05.28.2012

According to a study released by the Migration Policy Institute on May 4, immigrants have played a “central role” in both the expansion of vineyards and growth in related industries in Napa County, Calif., over the past two decades.

The study, Profile of Immigrants in Napa County, said the county has a “long history of welcoming immigrants,” who started the area’s wine industry. The study found that the number of immigrants in the county’s workforce increased by 99% between
1990 and 2000, with Latinos constituting the fastest-growing subgroup. The number of immigrant workers then rose by 60% between 2000 and 2008-2009, when non-Latino—mostly Asian—immigrant workers outpaced Latinos.

In contrast, the number of native-born workers in the county grew by 15% during the 1990s and then by 9% during the 2000s, the study found. It said immigrants went from being 16% of the county’s workforce and 12% of its total population in 1990 to 33% and 21%, respectively, in 2009.

The study defined workers as adults aged 18 to 64 who worked any hours in the week prior to their survey responses, and it included both county residents and commuters. The Migration Policy Institute analyzed the U.S. Census Bureau’s population and housing data for 1990 and 2000 and American Community Survey data for 2005 through 2009. The Napa Valley Community Foundation commissioned the study.

The study found that in the latter half of the 2000s, immigrants made up 73% of all workers in agriculture, the lead sector of the county’s economy. Agricultural employment in the county held steady throughout the decade despite the “Great Recession,” the study said.

“Today, many immigrants are relatively high-skilled workers with year-round jobs in the vineyards, although lower-skilled migrant workers still come in relatively large numbers during the harvest,” according to the study. “In 2009, agricultural employment averaged 5,000, peaking at over 6,000 during the summer and fall. Respondents reported that migrant workers are brought in during the harvest, but that agricultural employment is steady for most workers except during the winter.”

Meanwhile, immigrants comprised 39% of all the county’s manufacturing workers and 29% of all its workers in the hospitality sector in the period from 2005 to 2009, the study found. It estimated that wineries employed more than half of all manufacturing workers in the county during that period. Immigrants also made up substantial portions of workers in construction, information, and education, health, and social services.

Participation in the county’s workforce is higher for immigrant men than native-born men but is lower for immigrant women than native-born women, the study found. It also said the county’s immigrant workers earn substantially less than its native-born workers in all industries except hospitality.

“Immigrants’ earnings are highest in education, health, and social services—where workers have the most education—and lowest in agriculture and hospitality, where part-year and part-time work are common,” the study said. “Native workers tend to be much
better paid than immigrants in agriculture, construction, and manufacturing, and the earnings gap with natives is greater for immigrant men than women.”

The limited English proficiency and relatively little formal education of many immigrants workers in the county are among factors hindering their mobility to better paying jobs, the study said.

At least some immigrants in the county would likely benefit if federal lawmakers paved a path to legal status for undocumented agricultural workers, the study added. It pointed to the Comprehensive Immigration Reform Act (S. 1258), which was reintroduced June 22, 2011.

“This bill would allow qualified agricultural workers to apply for temporary, conditional legal status and to eventually make the transition into permanent status after meeting agricultural work requirements and paying fines,” the study said. “The integration benefits of such a plan would likely extend far beyond Napa County’s agriculture sector, as the spouses and children of qualified workers probably would also be eligible for legal status under this legislation.” 05.21.2012

On May 16, The U.S. Court of Appeals for the Sixth Circuit held that a Marine Corps reservist could not sue a Michigan manufacturer under the Uniformed Services Employment and Reemployment Rights Act because he failed to file the action within 180 days as required by an employment agreement with his former employer (Oswald v. BAE Indus. Inc., 6th Cir., No. 11-1119, unpublished opinion 5/16/12).

Writing for the court, Judge Eric L. Clay said Jerome Oswald conceded that a 2008 amendment that eliminated limits on USERRA actions could not be applied to his lawsuit, which challenged his termination by BAE Industries Inc. in 2007. The “narrow question” before the court, Clay said, was whether Oswald was subject to a four-year statute of limitations that applied before 2008 or the 180-day time limit he accepted when he began work for BAE.

The appeals court rejected Oswald’s claim that USERRA overrode his employment contract, and held a lower court properly granted summary judgment to the employer based on Oswald’s failure to file a lawsuit within 180 days of his discharge.

According to the decision, Oswald began working for BAE in 2005 as a manufacturing engineer. In July 2006, Oswald was ordered to serve in Iraq. He alleged that when he informed BAE, a company manager indicated his disapproval “by his demeanor and non-verbal conduct.”

After a year of military service, Oswald returned to BAE in July 2007. He alleged that his duties and responsibilities were drastically reduced, and he was not given any tasks with deadlines or completion dates. The absence of deadlines was a sign that BAE did not intend to retain him for long, Oswald alleged.

According to Oswald, he was transferred and demoted to maintenance duties within a month of his return to work, and he was then discharged on Sept. 14, 2007, in an action the company claimed was dictated by economic conditions.

The Sixth Circuit said Oswald filed a February 2008 request that the Labor Department investigate his discharge, but DOL declined to pursue the claim. Oswald filed a lawsuit in the U.S. District Court for the Eastern District of Michigan alleging that he was fired in violation of USERRA and the Michigan Military Act, which provides similar employment protections.

BAE filed a motion for summary judgment, arguing the lawsuit was untimely because of Oswald’s failure to file it within the 180-day time limit required by his employment agreement.

Oswald’s agreement with BAE allowed him to pursue employment-related claims in any available forum, without first filing grievances or proceeding to arbitration.

However, the agreement required that “any action, claim or suit” had to be brought within 180 days. “I waive any and all limitations periods to the contrary,” Oswald stated in the agreement.

Citing the 180-day provision and noting that Oswald’s lawsuit was filed nearly three years after his discharge, the trial court granted judgment in favor of the company.

The appeals court said until 2008, when USERRA was amended by the Veterans’ Benefits Improvement Act (VBIA), the military leave statute contained no statute of limitations. Claims brought under USERRA were subject to a four-year general limitation, 28 U.S.C. § 1658(a).

VBIA amended USERRA to provide that for claims filed under the law in court or with the Merit Systems Protection Board, “there shall be no limit on the period for filing the complaint or claim.”

Oswald conceded that VBIA did not have retroactive effect, but he argued that his lawsuit was filed within the four years permitted by Section 1658(a) and was therefore timely, but the court disagreed, finding that the 180-day limit in Oswald’s employment agreement was controlling. Clay noted that the USERRA provides that the act “supersedes” any state law, as well as any “contract, agreement, policy, plan, practice, or other matter” that “reduces, limits, or eliminates” any benefit provided by the statute.

The Sixth Circuit has read the statute to mean that USERRA precludes limitations on the substantive rights of protected employees, “but not their procedural rights,” Clay wrote.

Stating that the court has considered limitation periods to be procedural issues, Clay wrote “Plaintiff’s employment contract “only shortens the time frame” for filing a lawsuit under USERRA. The 180-day limit on filing employment-related actions was a modification of Oswald’s procedural rights that was permitted by the military leave act, the Sixth Circuit found.

The court added that Section 4303(b) of USERRA gives the statute precedence over contractual provisions that impose “additional prerequisites to the exercise” of statutory rights or the receipt of statutory benefits, but Clay said “[c]onsent to a shorter time frame for filing a claim in court does not fall within this definition.”

“Although we are sympathetic to Plaintiff’s situation,” the court said, “especially in light of the VBIA amendment that no limitations period whatsoever is to apply to USERRA claims, we are bound to apply the pre-VBIA version of USERRA in deciding that the shortened filing period in Plaintiff’s employment contract was permissible.” 05.21.2012

PTO banks, which combine multiple types of leave such as vacation, sick, and personal days into one “bucket” and allow employees to use the leave as they see fit, tend to be more prevalent among large employers and those in the health care and insurance industries, according to Paid Time Off: The Elements and Prevalence of Consolidated Leave Plans, a paper released May 15. Management, professionals, non-union workers, and full-time employees are more likely to have access to PTO banks
than are other workers, noted the paper, sponsored by CLASP, an organization that focuses on policy issues affecting low-income people, and the Institute for Women’s Policy Research.

BLS reported in March 2011 that about 19 percent of private industry employees had access to a PTO bank, the paper noted, while 18 percent of workers had access to such banks in March 2010.

PTO banks are typically perceived to be cheaper and less trouble for employers if employees don’t need to provide a specific reason for taking leave, they reduce recordkeeping requirements and are more simple to administer.

Also, WorldatWork, a global human resources association based in Scottsdale, Ariz., found that employers’ use of PTO banks is increasing more dramatically. WorldatWork noted in a 2010 report titled Paid Time Off Programs and Practices that 28 percent of employers surveyed in 2002 said they used PTO banks, 33 percent said they used them in 2006, and 40 percent said they used them in 2010. 05.21.2012

The law of retaliation is one that continues to expand and evolve as federal and state legislatures continue to expand the rights of individuals who make complaints in the workplace about perceived unlawful action taken by employers. The courts interpreting cases involving retaliation have often taken a broad view of the kind of activity that employees engage in that will be subject to the anti-retaliation provisions of numerous federal and state laws.

The Equal Employment Opportunity Commission (EEOC) reported statistics in January 2012 for the year 2011 showing
retaliation claims rising faster than any other category of complaint. Over a 10-year period between 2001 and 2011, retaliation claims (all statutes) rose by 68% and retaliation claims (Title VII only statutes) rose by 54%. Although other types of claims (disability & National origin) have grown as well, the retaliation claim numbers should be a concern to employers. The attached charge displays EEOC complaint statistics over a 14 year period.

What is retaliation? Based on U.S. laws, it is any adverse action that an employer takes against an employee in response to a
complaint that person has made about discrimination or harassment. It can also apply to employees who exercise their rights under laws such as workers comp, employment laws, FMLA or other leave laws. Recent court decisions have gone even further, extending the same protection to employees who participate in investigations of other employees’ complaints. The original complaint does not need to be well founded in order for the courts to determine that the employee was indeed retaliated against. Retaliation includes adverse actions such as wage reductions, disciplinary measures, demotions, negative performance
evaluations, hostile attitudes, changes in job assignments or shifts, time off without pay, and of course, terminations.

In essence, the Supreme Court as well as other courts have given broad protection to employees who complain about alleged violations of employee-protection statutes. Because these laws cover such a broad spectrum of employment law, most employers today are not prepared to understand what retaliation and thus any decision made by an employer, either well intentioned or not, can be harmful to the employer.

Does this mean that an employee who has made a complaint now gets a free ride to do whatever they want in your workplace? No — but it does make the discipline process more complex if you are going to discipline a complainant. If an employee has had a history of excellent performance reviews, makes a complaint of discrimination, and then their next review is poor, this will appear to be retaliation. Therefore, an employer will need to follow a strict progressive discipline policy when dealing with an employee whose performance starts to slip, or who disobeys company policies or procedures. In addition, the employer will need to take extra care to check their facts before acting, and make sure that any adverse action against a complainant is consistent with
non-complainant employees.

With retaliation claims climbing sharply, it is crucial that employers become proactive in preventing retaliation in the workplace. The steps that employers can take to prevent such claims include educating all employees about their employment policies including sex harassment and discrimination policies and especially educating managers on how to handle complaints of discrimination in the workplace.

Memorial Day, the first of three popularly recognized U.S. summer holidays is coming up on Monday, May 28. According to holiday surveys, 95% or more of U.S. employers along with most government entities, banks and post offices recognize Memorial
Day as a paid holiday.

Although Memorial Day today is more thought of as the official marker for summer and a time to have a backyard barbeque, family picnic or trip to the beach, its past harkens to a more somber meaning. Formerly known as Decoration Day, it originated after the American Civil War to honor to dead Union soldiers of the Civil War. Even prior to this, in the Southern U.S., a practice sprang up to decorate Confederate grave, mostly during May, in Richmond and other cities during the Civil War.

By the early 20th century, the holiday began to transition to an occasion for more general expressions of memory as people visited graves of their deceased relatives in cemeteries, whether they had served in the military or not. As the 20th century moved on beyond World War II, it became a long weekend increasingly devoted to parades, shopping, family gatherings, trips to the beach as well as the famous Indianapolis 500 auto race.

From its beginning, the name for the holiday gradually changed from “Decoration Day” to “Memorial Day.” The term “Memorial Day” didn’t become more common until after World War II and wasn’t declared the official name until 1967.

Besides the extra day off, parades, concerts, barbeques, and retail shopping sales, many Americans today still observe Memorial Day by visiting cemeteries and memorials. In addition other traditions include: observing a national moment of remembrance at 3:00 pm local time, flying the U.S. flag at half-staff from dawn until noon local time and volunteer groups placing American flags on each grave at national cemeteries.

From everyone at HRM Partners, we wish you a happy, safe & restful Memorial Day holiday!

On May 10, 2012, the U.S. Court of Appeals for the Second Circuit rejected the National Labor Relations Board (NLRB) decision that Starbucks Corp. interfered with the rights of employees by forbidding them from wearing more than one union button at a time when they were on duty in the company’s stores (NLRB v. Starbucks Corp. d/b/a Starbucks Coffee Co., 2d Cir., No. 10-3511-ag, 5/10/12).

Denying enforcement of an NLRB ruling that the button limit violated Section 8(a)(1) of the National Labor Relations Act, the appeals court found that Starbucks encouraged workers to wear numerous buttons promoting its products. The company was entitled to avoid a “dilution” of its message by employees wearing multiple union buttons, Judge Jon O. Newman wrote for the appeals court.

The court also remanded to NLRB the case of an employee and union supporter who was fired after using obscenities in a public area of a New York Starbucks store. Newman and Judge Ralph K. Winter said the board’s customary four-part test for determining whether an employee has lost NLRA protection should not be applied to behavior that occurs in the presence of an employer’s customers. Judge Robert A. Katzmann concurred in the remand, but disagreed with the majority’s reading of NLRB precedent.

According to the decision and NLRB records, the disputes before the court arose out of organizing efforts by the Industrial Workers of the World (IWW) at four New York stores.

From 2004 to 2007, IWW supporters held protests and made numerous statements to news media. The court said Starbucks responded by using “a number of restrictive and illegal policies” that limited employees from engaging in pro-union activity that was protected by the NLRA.

Acting on unfair labor practice charges filed by IWW Local 660, the board, then consisting of Chairman Wilma B. Liebman and Member Peter C. Schaumber, issued a decision in 2009 (354 N.L.R.B. 876, 187 LRRM 1113 (2009)) finding that the company engaged in a variety of unfair labor practices.

The company petitioned for review in the U.S. Court of Appeals for the District of Columbia Circuit, but the court dismissed the proceedings at the request of the parties, and the board set aside the two-member decision after the U.S. Supreme Court held in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010), that the authority of the five-seat board could not be delegated to a panel with fewer than three members.

A three-member board panel reviewed the case and issued a decision in 2010 (355 N.L.R.B. 636, 189 LRRM 1493 (2010)) mostly affirming the rulings of the two-member panel. Starbucks petitioned for review in the Second Circuit, and NLRB filed a petition to enforce its order.

Newman said the first issue before the court was the board’s decision that the company violated the NLRA by enforcing a rule that permitted employees to wear one, but only one, union button at work.

The company had settled an NLRB unfair labor practice case in March 2006, the court noted. In the settlement, Starbucks gave up a total ban on union buttons and substituted a policy that permitted “reasonably-sized-and-placed buttons or pins that identify a
particular labor organization or a partner’s support for that organization,” with certain safety exceptions.

Starbucks managers interpreted the authorization for “buttons or pins” to limit employees to wearing one union pin at a time. The court said several employees were asked to remove IWW buttons from their clothing before they began work. IWW’s buttons, the court said, had the union’s initials in white letters on the red background of a button that was less than one inch in diameter.

Newman said an NLRB administrative law judge found, and the board agreed, that Starbucks did not have a legitimate
business interest in restricting displays of IWW buttons. The company encouraged employees to wear large numbers of buttons promoting Starbucks products.

Customers would not immediately recognize the company buttons as Starbucks-sponsored, the ALJ said, because the union buttons were “no more conspicuous than the panoply of other buttons employees displayed.”

The Second Circuit found that “the Board has gone too far in invalidating Starbucks’s one button limitation.” Starbucks had a right to shape its public image by encouraging or requiring employees to wear its product buttons, the court said. “The company is also entitled to avoid the distraction from its messages that a number of union buttons would risk.”

Citing the example of one employee who attempted to display eight union pins on her pants, shirt, hat, and apron, Newman said “wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks’s buttons.”

Denying enforcement of the NLRB finding that maintaining and enforcing the button rule was an unfair labor practice, the court concluded, “The company adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one,
union button on workplace clothing.”

California has launched an online portal to help small business owners keep current on the state’s worker safety regulations and laws. The Small Business Portal provides easy access to the state’s free consultation services for small companies to ensure they have a safe and healthful worksites, the Department of Industrial Relations said in announcing the website April 30. A broad range of information, from how to register a business and proper payment of wages to how to comply with safety regulations, is available via the portal, the agency said. Other information helps guide employees on what steps to take if workers are injured on the job,
according to the agency. DIR Director Christine Baker called the portal “a valuable resource to small business owners,” who typically lack the resources to hire consultants. The Small Business Portal is available at http://www.dir.ca.gov/SmallBusiness/index.htm. 05.13.2012

Here’s yet another story to report on exemption misclassification. Review site Yelp! Inc. has agreed to pay up to $1.25 million to settle proposed class allegations that the San Francisco-based company failed to pay overtime to nearly 1,000 account executives, according to a proposed settlement filed in the U.S. District Court for the Northern District of California (Larkin v. Yelp! Inc., N.D. Cal., No. 3:11-cv-01503, settlement filed 4/27/12).

In the April 27 filing, the employees delineated the settlement’s terms and urged the court to grant preliminary approval.

Yelp! makes money selling advertisements by representatives who make calls to potential sales leads, according to the complaint. The representatives, who are paid a base salary and can increase their pay through performance, were not exempt from overtime, the suit alleges.

According to the settlement motion, Yelp! contends that the employees’ claims have no merit and a majority of class members, including two of the named plaintiffs, signed releases preventing them from bringing the claims asserted in the filing. Yelp! also argues that a class action prohibition implemented in February 2012 bars class members from pursuing claims in this filing on a class or collective action basis.

The proposed settlement calls for $5,000 in incentive payments to the three named plaintiffs; $312,500 for attorneys’ fees and $10,000 for costs, $7,500 payable to the state Labor Workforce Development Agency under the Private Attorney General Act; and
$25,000 in fees to the settlement administrator.

Yelp! agreed to contribute 75 percent to 100 percent of the employer’s share of payroll taxes depending on the number of qualifying workweeks claimed.

The court is being asked to approve a national class, comprised of 454 reps employed by Yelp! between May 11, 2008, and Dec. 31, 2011, and a California class, an estimated 488 individuals employed reps from March 29, 2007, through Dec. 31, 2011.

Under the settlement agreement, the maximum California class payment is $586,667 and $293,333 to the national class members. Individual payments will be paid based on the total number of weeks worked in covered positions during the relevant class period.

The total amount Yelp! will pay depends on how many class members participate. In no event will Yelp! pay less than half the maximum gross amount attributed to the California class, according to the agreement. 05.13.2012